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2024 DIGILAW 1301 (AP)

Sale Mohana Rao v. State of A. P.

2024-09-13

K.SREENIVASA REDDY, T.MALLIKARJUNA RAO

body2024
JUDGMENT : K. Sreenivasa Reddy, J. Challenging the conviction and sentence passed in the judgment dated 09.03.2016 in Sessions Case No.288 of 2013 by the Sessions Judge, Mahila Court, Vijayawada (hereinafter referred to, as ‘the learned Sessions Judge’), accused Nos.1 and 2 preferred Criminal Appeal No.1088 of 2016 and Criminal Appeal No.286 of 2016, respectively. 2. Since both the Criminal Appeals arise out of the same judgment, the same are being disposed of, by this Common Judgment. 3. The parties are hereinafter referred to, as they were arraigned before the learned Sessions Judge. 4. Accused Ns.1 was tried for the offence punishable under Section 304B of the Indian Penal Code, 1860 (for brevity ‘IPC’), and accused No.2 was tried for the offence punishable under Section 201 IPC, by the learned Sessions Judge. 5. The substance of the charges as against the accused Nos.1 and 2 is that, prior to 26.09.2012 at Durga Agraharam, Karmikapuram, Vijayawada, accused No.1, being the husband of one Salle Pushpa (hereinafter referred to, as ‘the deceased’), subjected her to cruelty, harassment, humiliation, taunt her in connection with demand of additional dowry and abetted the commission of suicide and caused her death; that the accused No.2, being the sister-in-law of the deceased, on coming to know about commission of suicide by the deceased, went to her house, opened the house from backdoors, removed the chunny from the neck of the deceased with an intent to cause disappearance of evidence of the offence and threw outside and informed to P.W.1, mother of the deceased, that the deceased died due to fits. 6. The case of the prosecution, in brief, is as follows: Accused Nos.1 and 2 are residents of Anaparthivari Street, Durga Agraharam, Vijayawada and all the material prosecution witnesses are residents of Sanjeevaiah Colony, Arundalpet, Vijayawada. P.Ws.1 and 2 are parents, P.W.3 is younger sister, P.W.4 is junior paternal uncle, P.W.5 is senior maternal aunt and P.W.6 is co-daughter-in-law, of the deceased. Accused No.1 is the husband, and accused No.2 is the sister, of the deceased. Accused No.2 is concubine of P.W.2. Marriage between the deceased and accused No.1 was solemnized on 02.08.2012; at the time of marriage, parents of the deceased i.e. P.Ws.1 and 2, gave an amount of Rs.25,000/-, one gold chain, gold ring, watch, gold ear rings and silver anklets to the deceased in connection of marriage with accused No.1. Accused No.2 is concubine of P.W.2. Marriage between the deceased and accused No.1 was solemnized on 02.08.2012; at the time of marriage, parents of the deceased i.e. P.Ws.1 and 2, gave an amount of Rs.25,000/-, one gold chain, gold ring, watch, gold ear rings and silver anklets to the deceased in connection of marriage with accused No.1. Subsequent to the marriage, accused No.1 used to harass, humiliate, taunt and subject the deceased to mental and physical cruelty, demanding her to bring additional dowry of Rs.20,000/- from her parents; accused No.1 habituated to consume alcohol. About one week prior to the death of the deceased, the deceased informed the cruel treatment of accused No.1 to P.W.1. Due to unbearable physical and mental cruelty of accused No.1, the deceased committed suicide in her matrimonial house on 26.09.2012. Thereafter, accused No.2 came to know about the suicide by the deceased, went to her house, opened the house from backdoors, removed the chunny from the neck of the deceased and with an intent to cause disappearance of evidence of the offence, threw it outside and informed to P.W.1 that the deceased died due to fits. Believing the version of accused No.2, P.W.1 gave Ex.P11-report to P.W.12, Sub-Inspector of Police, Suryaraopet Police Station, Vijayawada on 27.09.2012 at 4.30 p.m. Basing on the report, P.W.12 registered a case in Crime No.283 of 2012 under Section 174 CrPC and issued Ex.P12-FIR and submitted the copies of FIR to all the concerned. P.W.12 examined P.Ws.1 to 5 and recorded their statements. He secured the presence of mediators i.e. L.W.8/Abdul Ghani and L.W.9/Mohd. Rafi and got prepared Ex.P13-scene observation report. On 28.09.2012, P.W.10, Deputy Tahsildar, Vijayawada secured the presence of P.Ws.7, 8 and L.W.12/G.Narasimha Rao and conducted inquest over the dead body of the deceased and got prepared Ex.P9-inquest report. P.W.12 sent the dead body of the deceased for Post-Mortem examination. On coming to know through accused No.2 and others that the deceased committed suicide due to physical and mental harassment of accused No.1 for unlawful demand of additional dowry, on 16.11.2012, P.W.1 presented another report vide Ex.P.14 to P.W.12. Basing on the same, P.W.12 issued Ex.P.15-altered FIR for the offence punishable under Section 304B IPC. On P.W.11, Assistant Commissioner of Police, West Zone, Vijayawada city secured the presence of P.Ws.1 to 6 and L.W.7/Sivalenka Rajeswari, examined them and recorded their statements. Basing on the same, P.W.12 issued Ex.P.15-altered FIR for the offence punishable under Section 304B IPC. On P.W.11, Assistant Commissioner of Police, West Zone, Vijayawada city secured the presence of P.Ws.1 to 6 and L.W.7/Sivalenka Rajeswari, examined them and recorded their statements. P.W.11 arrested accused Nos.1 and 2 on 18.11.2012 at 11.00 a.m. near Electricity Office, Durgapuram, Vijayawada and got remanded them to judicial custody. P.W.9, Professor and HOD in the Department of Forensic Medicine, Sidhartha Medical College along with L.W.14/Dr.Brahmaji, Master Assistant Professor, Department of Forensic Medicine, Siddhartha Medical College, Vijayawada conducted autopsy over the dead body of the deceased and issued Ex.P10-Post Mortem Certificate. P.W.9 opined that the death of the deceased occurred due to asphyxia due to hanging. After completion of investigation and on receipt of all the requisite reports, P.W.11 filed charge sheet. 7. In support of its case, prosecution examined P.Ws.1 to 12 and got marked Exs.P1 to P15. No material objects were marked on behalf of prosecution. On behalf of defence, no oral or documentary evidence has been adduced. 8. The plea of accused Nos.1 and 2 is one of denial. 9. By the impugned Judgment, dated 09.03.2016, the learned Sessions Judge found the accused No.1 guilty of the offence punishable under Section 304B IPC and found the accused No.2 guilty of the offence punishable under Section 201 IPC and accordingly convicted them of the respective charges in terms of Section 235 (2) of the Code of Criminal Procedure, 1973 (for brevity ‘CrPC’) and sentenced accused No.1 to undergo imprisonment for life for the offence punishable under Section 304B IPC and sentenced accused No.2 to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.25,000/-, in default of payment of fine, to undergo simple imprisonment for a period of three months for the offence punishable under Section 201 IPC. It was ordered that the accused Nos.1 and 2 were entitled for set-off under Section 428 CrPC. Aggrieved by the same, the present appeals are preferred. 10. Learned counsel appearing on behalf of appellant/A.1 contended that there is absolutely no evidence on record to show that the deceased was subjected to harassment soon before her death. He further submits that P.Ws.1 and 2, who are parents of the deceased, did not support the prosecution case and they were treated hostile by the prosecution. 10. Learned counsel appearing on behalf of appellant/A.1 contended that there is absolutely no evidence on record to show that the deceased was subjected to harassment soon before her death. He further submits that P.Ws.1 and 2, who are parents of the deceased, did not support the prosecution case and they were treated hostile by the prosecution. He further submits that P.Ws.3 to 6, who are closely related to the deceased, deposed as against the appellants as they were inimical with A.2, but their evidence does not incriminate anything against the accused to connect the accused with the charges levelled against them. The learned counsel further submitted that there is no iota of evidence on record to establish that the accused No.1 demanded any additional dowry from the deceased or harassed the deceased, but the learned Sessions Judge has not appreciated the evidence on record in right perspective and erred in convicting and sentencing the accused. Hence, he prayed to allow the appeal. 11. The learned counsel appearing on behalf of appellant/A.2 submitted that there is absolutely no evidence to connect A.2 with the offence punishable under Section 201 IPC. According to the learned counsel, the deceased was suffering from ill-health even prior to her marriage. He further submitted that the granddaughter of the appellant telephoned the prosecution witnesses and informed that the deceased got fits and fell down, and on coming to know about the death of the deceased, the prosecution witnesses came up with the concocted story only because of the rivalry between the prosecution witnesses and A.2, and there is no legal evidence to convict A.2 of the offence alleged against her, but the learned Sessions Judge has not appreciated the evidence on record in right perspective and erred in convicting and sentencing the accused. Hence, he prayed to allow the appeal. 12. On the other hand, the learned Assistant Public Prosecutor submitted that there is harassment meted out by the accused to the deceased. According to him, A.1 is habitual drunkard and his marriage with the deceased was a second marriage, and that there is evidence of P.Ws.3 to 5 to connect the accused with the charges levelled against him, and the judgment of the learned Sessions Judge is well-reasoned and calls for no interference. 13. According to him, A.1 is habitual drunkard and his marriage with the deceased was a second marriage, and that there is evidence of P.Ws.3 to 5 to connect the accused with the charges levelled against him, and the judgment of the learned Sessions Judge is well-reasoned and calls for no interference. 13. The point that would arise for consideration in the present Criminal Appeals is whether the prosecution is able to bring home guilt of the appellants/A.1 and A.2 beyond reasonable doubt for the respective charges levelled against them ? 14. On a perusal of the entire evidence on record goes to show that P.Ws.1, 2 and 7 did not support the case of prosecution and they were declared hostile by the prosecution. P.Ws.1 and 2 are parents of the deceased. P.W.3 is sister of the deceased. On 26.09.2012, in the evening hours, daughter of A.2 by name Pravallika called P.W.3 and informed that the deceased fell down and not in conscious state. Immediately, P.W.3 rushed to the house of the deceased along with P.W.1 and came to know through A.2 that the deceased fell down due to fits and they brought her outside by opening doors. By that time, the accused were present in the house of the deceased. According to her, they found a ligature mark on the neck of the deceased, which may be caused due to wire. P.W.3 thought that neck of the deceased must have been squeezed with a wire. On questioning the accused, they kept silent and did not respond and later they absconded. In cross-examination, P.W.3 categorically stated that they have enmity towards A.2 as her father is not taking care of them and living with A.2. She further stated that the deceased was suffering from fits and marriage of A.1 and the deceased was performed as per the wishes of the deceased. In cross-examination, she categorically stated that she has no personal knowledge as to what had happened in the house of the deceased. 15. A perusal of the evidence of P.W.3 goes to show that there is absolutely no averment as against the accused that there was either a demand of dowry by the accused No.1 or any harassment meted out to the deceased by accused No.1. 15. A perusal of the evidence of P.W.3 goes to show that there is absolutely no averment as against the accused that there was either a demand of dowry by the accused No.1 or any harassment meted out to the deceased by accused No.1. Except stating that the deceased fell down and was not in conscious state, there is no other evidence to connect the accused to the aforesaid crime. 16. P.W.4 is none other than brother of P.W.2. He deposed that on coming to know that the deceased was not well, as she suffered from fits, he rushed to the house of the deceased and found body of the deceased. According to him, accused No.1 is a habitual drunkard and marriage of A.1 was performed with the deceased (deceased is second wife of A.1). P.W.4 admitted in cross-examination that the deceased suffered from fits. Apart from the same, nothing has been stated by P.W.4 as against the accused. 17. P.W.5, sister of P.W.1, deposed that A.2 is concubine of P.W.2; A.1 is brother of A.2. The deceased was married in the year 2012. According to her, the deceased called P.W.5 over phone and asked for an amount of Rs.20,000/- and also requested to get Rs.20,000/- from any other sources. P.W.5 assured that she would arrange Rs.20,000/- in the coming month within 4 or 5 days, and after 10 days, son of P.W.5 received information about the death of the deceased through P.W.3. P.W.5 stated that on enquiry, she came to know that the deceased died due to fits. According to P.W.5, nothing has been stated by P.W.5 with regard to either the harassment of the deceased in the hands of accused No.1 demanding any dowry. 18. P.W.6 is brother’s wife of P.W.2. According to her, within two months of the marriage of the deceased, the deceased died. According to her, whenever the deceased used to visit P.W.6, she used to take money from her for petty expenses. One day, P.W.6 went to the house of the deceased, and the deceased wept and stated to her that accused No.1 is not going for work and irritating her. P.W.6 pacified the deceased and A.1 and went back to her house. After 7 days, she heard the news that the deceased is dead. 19. One day, P.W.6 went to the house of the deceased, and the deceased wept and stated to her that accused No.1 is not going for work and irritating her. P.W.6 pacified the deceased and A.1 and went back to her house. After 7 days, she heard the news that the deceased is dead. 19. A perusal of the entire evidence on record goes to show that there is absolutely no evidence to show that the deceased was subjected to harassment demanding any dowry soon before her death. It is pertinent to mention here that there was no allegation to the extent that the deceased was subjected to harassment at all. In fact, parents of the deceased P.Ws.1 and 2 did not support the case of the prosecution and they were treated hostile by the prosecution. When there is absolutely no harassment on the part of the accused No.1, there is any amount of ambiguity whether the case comes within the purview of the offence punishable under Section 304B IPC. 20. As regards the presumption under Section 113B of the Indian Evidence Act, 1872, when the question is whether a person committed dowry death of a woman, if it is shown that soon before her death, the said woman was subjected to cruelty or harassment for, or in connection with, any demand for dowry, by such person, then the Court shall presume that such person had caused the dowry death. In the case on hand, as discussed supra, there is absolutely no evidence to show that the deceased was subjected to harassment demanding any dowry soon before her death. Parents of the deceased, who were examined as P.Ws.1 and 2, did not support the prosecution case. Except the evidence of P.Ws.3 to 6, there is absolutely no other evidence on record. This Court meticulously evaluated the evidence of P.Ws.3 to 6, wherein there is absolutely no accusation as against the accused that either they subjected the deceased to cruelty or harassment for, or in connection with, demand for dowry. In the absence of such evidence, presumption under Section 113B of the Indian Evidence Act, 1872 cannot be drawn and hence, this Court is not in concurrence with the observations made by the learned Sessions Judge. In view of the aforesaid reasons, this Court is inclined to set aside the conviction and sentence recorded as against appellant/A.1 is concerned. 21. In the absence of such evidence, presumption under Section 113B of the Indian Evidence Act, 1872 cannot be drawn and hence, this Court is not in concurrence with the observations made by the learned Sessions Judge. In view of the aforesaid reasons, this Court is inclined to set aside the conviction and sentence recorded as against appellant/A.1 is concerned. 21. Insofar as appellant/A.2 is concerned, the allegation against accused No.2 is that accused No.2, being the sister-in-law of the deceased, on coming to know about commission of suicide by the deceased, went to her house, opened the house from backdoors, removed the chunny from the neck of the deceased with an intent to cause disappearance of evidence of the offence and threw outside and informed to P.W.1, mother of the deceased, that the deceased died due to fits. The criminal law was set into motion by lodging Exs.P11 and P14. The scribe of the said reports i.e. P.W.1, did not support prosecution case and he was treated hostile by the prosecution. P.W.4 categorically stated that on 26.9.2012 evening hours, P.W.2 called him and informed that the deceased was not well as she suffered from fits. Whereas P.W.3 stated that A.2’s daughter Pravallika called her and informed that the deceased fell down and not in conscious state. There is any amount of ambiguity with regard to the fact that the deceased had fallen down because of fits. A vague statement has been made to that extent, basing on which it cannot be concluded that the accused made a false representation to the witnesses. Section 201 IPC deals with causing disappearance of evidence of offence, or giving false information to screen offender. In order to attract the said offence, a person knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment or with that intention gives any information respecting the offence which he knows or believes to be false. In the case on hand, there is absolutely no evidence on record to show that the deceased was subjected to cruelty or harassment for, or in connection with, demand of dowry. In the case on hand, there is absolutely no evidence on record to show that the deceased was subjected to cruelty or harassment for, or in connection with, demand of dowry. Apart from it, there is no legal evidence to the effect that the accused caused any evidence of commission of the offence to disappear or had an intention of screening the offender from legal punishment or gave any false information. In the absence of any intention to screen the evidence, a vague statement that has been made by the witness, would not in any way come within the purview of Section 201 IPC. In the case on hand, the main offence under Section 304 B IPC is not established in view of lack of evidence. We are convinced that there is no evidence to connect A.2 with the offence punishable under Section 201 IPC. In a judgment dated 29.03.2019 in Criminal Appeal No.1550 of 2011, the Hon’ble Supreme Court of India held thus : “A close scrutiny of the evidence of PW-1 and PW-2 does not disclose any material to implicate the Appellants in the offence under Section 201, IPC. The FIR refers to the statement of PW-1 that he believed that the Appellants and Shyam Sunder killed Kamala and cremated her. The High Court affirmed the conviction of the Appellants on an assumption that the cremation of the body of Kamala was not possible without the active connivance of the Appellants. We are convinced that the Appellants are entitled to the benefit of doubt in view of the lack of evidence regarding their involvement for an offence under Section 201, IPC. Therefore, the conviction and sentence of the Appellants is set aside.” 22. In view of the foregoing discussion, this Court is of the opinion that the conviction and sentence recorded by the learned Sessions Judge against the appellants/A.1 and A.2 in the impugned judgment are not sustainable in the eye of law and the same are liable to be set aside. 23. Accordingly, the Criminal Appeals are allowed. The conviction and sentence recorded against the appellants/A.1 and A.2 in the judgment dated 09.03.2016 in Sessions Case No.288 of 2013 by the Sessions Judge, Mahila Court, Vijayawada are set aside. The appellants/A.1 and A.2 are found not guilty of the charges levelled against them and they are accordingly acquitted of the said charges and are set liberty. The conviction and sentence recorded against the appellants/A.1 and A.2 in the judgment dated 09.03.2016 in Sessions Case No.288 of 2013 by the Sessions Judge, Mahila Court, Vijayawada are set aside. The appellants/A.1 and A.2 are found not guilty of the charges levelled against them and they are accordingly acquitted of the said charges and are set liberty. Fine amount, if any, paid by the appellants shall be refunded to them. 24. The appellant/A.1 was released on bail as per Order of this court dated 26.10.2021 in I.A.No.1 of 2021 in the above Criminal Appeal in view of the Judgment of the combined High Court in Batchu Ranga Rao v. State of Andhra Pradesh, 2017 (2) ALD (Crl.) 78. Hence, the appellant/A.1 is directed to appear before the Superintendent, Central Prison, Rajamahendravaram, for completing necessary legal formalities.